The States Versus ObamaCare

As new state attorneys general take office in the coming weeks, I expect an increase in the number of states challenging the law in court.

By

Pam Bondi

Updated Jan. 5, 2011 12:01 a.m. ET

This week begins the inauguration and swearing-in ceremonies for newly elected officials all over the country. One thing many of us have in common is that the voters rewarded us for our outspoken opposition to ObamaCare.

The electorate's decisive rejection of the Obama administration's policies reveals a pervasive concern over the federal government's disregard of fundamental aspects of our nation's Constitution. No legislation in our history alters the balance of power between Washington and the states so much as ObamaCare does.

The tactics used to pass the health-care bill gave all Americans ample warning of the constitutional wrongdoing that was about to occur. Concerns were raised in the summer of 2009 over the constitutionality of the individual mandate and other portions of the bill, yet the president and Congress proceeded full-steam ahead. In the Senate, the much-ridiculed "Cornhusker Kickback" gave Nebraska an all-expenses-paid Medicaid expansion program. Due to public pressure, the provision was eventually removed from the final law.

Following Senate passage, House Speaker Nancy Pelosi planned to "deem-and-pass" the federal health-care bill, a constitutionally suspect procedure of passing a bill without actually voting on it. Instead, the speaker allowed the House to vote on the Senate version of the bill without amendments, and Congress subsequently used a parliamentary maneuver called budget reconciliation to "fix" the flawed bill. In the end, not a single Republican voted for the legislation.

Unwilling to acquiesce to such a blatantly unconstitutional act, Florida and 19 other states challenged the new law and its requirement that nearly every American purchase health insurance. The lawsuit is based on the common sense notion that an individual's decision not to purchase health insurance is not an act of "commerce" that can be regulated under Congress's constitutionally enumerated powers. Unsurprisingly, the Obama administration has invoked shifting and contradictory arguments in its efforts to defend the indefensible.

The U.S. Department of Justice first argued that the fine triggered by noncompliance with the individual mandate was not a penalty but a tax authorized by the Constitution's Taxing and Spending Clause—hoping no one noticed President Obama's claim on national television that the individual mandate is "absolutely not a tax." The Justice Department continued to press this tax argument despite the fact that Congress referred to the individual mandate as a "penalty," excluded it from the bill's revenue-raising section, and claimed the Commerce Clause as the constitutional authority to pass it.

The federal judge presiding over the states' lawsuit in Pensacola, Fla., got it right when he wrote: "Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an 'Alice-in-Wonderland' tack and argue in court that Congress really meant something else entirely."

The Department of Justice has even argued that the individual mandate regulates the so-called commerce-related activities of "mental processes" and "economic decisions." It doesn't matter if a person is currently engaged in an activity affecting commerce, according to the Justice Department, but only that a person inevitably will. Gaining little traction with this thought-equals-action argument, the Justice Department pivoted and claimed that the individual mandate is "essential" for this kind of health-care reform. The Constitution grants Congress only specific powers—it does not empower Congress to pursue its policy objectives by any means necessary.

As new state attorneys general take office in the coming week, I fully expect an increase in the ranks of the states fighting ObamaCare in court. Our lawsuit, together with a similar lawsuit filed by Virginia's attorney general, has exposed the health-care law's threat to individual liberty and to the constitutional structure that the Founders designed as a means of protecting that liberty. The stakes are clear and compelling: If the courts deem the federal health-care law to be constitutional, then there are no meaningful constitutional restraints on Congress's power to regulate virtually every facet of our lives.

Those of us taking our oaths of office would do well to remember that the American people are not asking for promises of more government programs and more taxpayer spending. The people are asking only that we keep our word and uphold the Constitution.

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